Qinlin Zhang v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT QINLIN ZHANG, No. 15-73747 Petitioner, Agency No. A088-106-922 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 17, 2022** Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges. Qinlin Zhang, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, applying the standards governing adverse credibility determinations under the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We deny in part and dismiss in part the petition for review. Substantial evidence supports the agency’s adverse credibility determination based on similarities, including verbatim phrasing, between Zhang’s declaration and those of two unidentified applicants. See Matter of R-K-K-, 26 I. & N. Dec. 658, 659 (BIA 2015) (“significant similarities between statements submitted by applicants in different proceedings” may support an adverse credibility determination); see also Shrestha, 590 F.3d at 1048 (adverse credibility finding reasonable under the totality of the circumstances). Zhang’s explanations do not compel a contrary conclusion. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). Thus, in the absence of credible testimony, in this case, Zhang’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). We lack jurisdiction to consider Zhang’s contentions concerning a pattern or practice of persecution, membership in a disfavored group, and his fear of harm as a returnee because he did not raise these arguments before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (no subject-matter jurisdiction 2 15-73747 over claims not presented in administrative proceedings below). Substantial evidence also supports the agency’s denial of CAT protection because Zhang’s claim was based on the same testimony the agency found not credible, and the record does not otherwise compel the conclusion that it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to China. See Shrestha, 590 F.3d at 1048-49. We do not consider the information from country conditions reports Zhang references in his opening brief that are not part of the administrative record considered by the agency. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED …

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